Telecommunications (Interception) Amendment Bill 2004

Last Updated: 2 June 2004

[Note: This page is about an old Bill. For information about the latest 2004 Bill, introduced on 27 May 2004, see separate page.]

On 19 February 2004, the Federal Government introduced the Telecommunications (Interception) Amendment Bill 2004 into Parliament. The Bill contained proposed changes to telecommunications interception laws in relation to messages delayed and stored during transit, such as email and SMS, as well as a number of other changes.

On 3 March 2004, the Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and the Committee issued its report on 30 March 2004.

Subsequently, the Government deleted the stored communications provisions from the Bill during its passage through Parliament on 1 April 2004. (The Government's third attempt to amend the Act in relation to stored communications was subsequently introduced into Parliament on 27 May 2004 - see separate page.)

Brief Overview and Commentary

Extend the definition of "interception" to include reading or viewing a communication which thereby would have provided increased privacy protection for text based communications, such as email and SMS messages. EFA supported this amendment. (This amendment was deleted from the Bill along with the other amendments concerning stored communications).

Clarify the existing law in relation to access to messages that are temporarily delayed and stored during passage over a telecommunications system (e.g. email, SMS and voice mail messages). These changes aimed to ensure it is clear that law enforcement authorities are required to obtain an interception warrant before accessing messages temporarily stored during passage. (These amendments were deleted from the Bill.)

Some commentary in the media had stated that the proposed changes concerning stored communications were "similar" to changes proposed by the Federal Government in 2002, which EFA strongly opposed. While the proposed amendments dealt with the same issue that the government sought to address in 2002, the Government had apparently re-visited that issue with the result that the proposal was the opposite of the 2002 proposal.

EFA supported the apparent intent of the proposed amendments in relation to communications stored during passage because they would provide improved protection for Internet and other telecommunications users' privacy. However, EFA considered that several aspects of the proposed amendments required clarification, and additional amendments were necessary to ensure adequate privacy protection for communications stored during passage.

Extend the range of criminal offences in relation to which law enforcement agencies ("LEAs") are able to obtain an interception warrant to include terrorist offences, offences involving dealings in firearms and State and Territory so-called "cybercrime" offences. EFA opposed the extension of the availability of interception warrants to the proposed broad range of so-called "cybercrime" offences. Most of those listed in the Bill involve penalties of only up to 1, 3 or 5 years imprisonment (instead of the 7 years normally applicable for interception warrant availability) and do not necessarily involve the use of a telecommunications system to commit the offence, notwithstanding that they are described as "cybercrime" offences in the Explanatory Memorandum to the Bill.

Exclude from the definition of interception the act of listening to, recording, reading or viewing communications to publicly-listed ASIO numbers. EFA opposed this amendment because ASIO is already allowed to record calls to their own numbers (the same as is any government agency or business) providing callers are notified of the recording at the commencement of the call.

Remove the requirement for ASIO to notify the telecommunications carrier where a warrant has been issued for the interception of a telecommunications service operated by the carrier and the assistance of the carrier is not required in order to execute the warrant. EFA opposed this amendment as the government had not provided any legitimate reason or evidence of a need for the change.

Detailed Analysis and EFA Submission

EFA's submission to the Senate Legal & Constitutional Legislation Committee contains a detailed analysis of the Bill together with commentary on issues of concern to EFA and related recommendations.

Following lodgement of the submission, EFA identified several other issues of concern and these were addressed in EFA's oral testimony during the Committee's hearing on Monday 22 March 2004.

EFA Submission to the Inquiry, 9 March 2004
(Note: Following lodgement of the submission, EFA identified several other issues of concern and these were addressed in EFA's oral testimony during the Committee's hearing on Monday 22 March 2004.)

Other Submissions to the Inquiry
(incl. Australian Privacy Foundation, Victorian Privacy Commissioner, Attorney-General's Department, Australian Federal Police and other police forces).

"Recommendation 1
The Committee recommends that Parliamentary consideration of proposed
subsections 6(1) 6(5), 6(6) and 6(7) be deferred until Parliament is informed of agreement between the Attorney-General's Department and the AFP on the current operation of the TI regime, and how it will operate under the Bill."

Status of the Bill

Following the Committee's recommendation, the Government deleted the provisions concerning stored communications and text messages from the Bill during its passage through Parliament on 1 April 2004. (The remainder of the amendments were passed.)

The Government said it expected to introduce another Bill concerning stored communications in the May 2004 sittings after resolving issues raised during the Committee's inquiry. (The Government's third attempt to amend the Act in relation to stored communications was subsequently introduced into Parliament on 27 May 2004 - see separate page.)

During the Committee's inquiry it had become apparent that government agencies disagree, and so do the Solicitor-General and Commonwealth Director of Public Prosecutions ("CDPP"), on the correct interpretation of the existing law and how it would operate under the proposed amendments. The Australian Federal Police ("AFP"), relying on the opinion of the CDPP, said they believe they are currently allowed to intercept communications temporarily stored on telecommunications service providers' equipment without an interception warrant due to the operation of the general search powers in Section 3L of the Crimes Act. (Section 3L came into effect with the Cybercrime Act 2001 which was rushed through Parliament in the wake of September 11.) However the Attorney-General's Department, relying on the advice of the Solicitor-General, said Section 3L does not over-ride the Telecommunications Interception Act, that is, the AFP is currently required to obtain an interception warrant. (For more information see the hearing transcript and A-GD and AFP submissions to the inquiry).

EFA considers the CDPP/AFP position to be of serious and major concern in relation to the privacy protection of communications passing over the telecommunications system and that the Bill as currently drafted will not resolve the difference of opinion. The Government should, as a matter of urgency, introduce amendments to relevant legislation to put this matter beyond doubt and ensure that police are not permitted to access communications passing over a telecomunications system without an interception warrant in accord with the Telecommunications (Interception) Act.

Another disagreement between the AFP and the Attorney-General's Department concerned proposed changes to extend the definition from listening and recording (includes copying) to include reading and viewing. Inserting that definition into the Act, without appropriate related amendements, would have made it illegal for employers' designated staff to read email tagged as suspected spam to determine whether or not it is spam. The Attorney-General's Department said they were not concerned about that aspect because they rely totally on the artificial intelligence of spam filtering technology. The Australian Federal Police disagreed, stating they consider it necessary for a human to read suspect messages. Unless the Bill was amended, employers would have to allow their employees' mail boxes to be filled with spam if they wish to avoid missing messages that were incorrectly tagged as spam.

For information about the Government's subsequent and third attempt to amend the Telecommunications Interception Act in relation to stored communications, see separate page concerning the Bill introduced on 27 May 2004.